BOISE – All 70 North Idaho farmers who were sued over the smoke generated when they burn their bluegrass fields have agreed in principle to settle a class-action lawsuit from area residents with breathing problems.
“Some are not happy about any amount being paid, but the decision to pay is the insurance companies’, not the farmers’,” said Peter Erbland, a Coeur d’Alene attorney who represents 50 of the farmers.
Erbland said the agreement to pay damages for burn seasons in 1999, 2000 and 2001 was based on an analysis of how much it would cost to continue to fight the lawsuit, including attorney fees and expert witnesses.
Those years are the only ones left in the case because in 2002, the Idaho Legislature passed HB 391, which prohibited lawsuits against field-burning farmers as long as the farmers registered their fields and followed state smoke-management rules. First District Judge John Mitchell declared that “safe harbor” law unconstitutional, but the Idaho Supreme Court overturned his decision and upheld the law, and the U.S. Supreme Court declined to review that decision. That left the case to continue just with the earlier years’ claims.
The amount of the settlement wasn’t released Thursday because it hasn’t yet been formalized. The insurance companies will pay the money into a fund, and then anyone who falls into the class – people with respiratory conditions who live in North Idaho or Spokane County – can make claims for payment.
One defendant left
The settlement leaves just one defendant in the case – the North Idaho Farmers Association. On Thursday, the association argued in 4th District Court that it should be dismissed from the lawsuit because it didn’t personally burn any fields or send out any smoke.
The nonprofit association “didn’t own any bluegrass fields; we didn’t burn any bluegrass fields,” attorney Don Farley told the court.
But Brent Walton, a Seattle attorney representing the residents with breathing problems, said, “NIFA did everything but light the field.” During those years, he told the court, the association provided a weather station and meteorologist who helped decide whether farmers could burn their fields each day.
For Alex Heisel, a girl from Post Falls with cystic fibrosis and a lead plaintiff in the case, said Walton, “NIFA’s authorization of burning on any particular day means she leaves her home, she flees the state, goes to Spokane, Priest Lake area, somewhere out of the smoke. … Here NIFA is one piece to the whole process without which no burning would have taken place, at least on the Rathdrum Prairie.”
Retired District Judge William Woodland, who is hearing the case, took the motion to dismiss the association under advisement, and indicated it could be some weeks before he reaches a decision.
Association spokeswoman Linda Clovis said, “The North Idaho Farmers Association is the only one left in, and the farmers association doesn’t burn. I think that’s pretty unique.”
She said the association got a settlement offer but turned it down. “It wasn’t much,” she said. “But … it’s the principle.”
The insurance companies for every farmer who was sued “clearly state that the farmers burned,” Clovis said. “They did; they burned their fields for their crop. But the association doesn’t.”
Kentucky bluegrass farmers burn their fields annually to prompt another year’s crop without reseeding. When fields are burned on the Rathdrum Prairie, prevailing winds typically carry the smoke to the area around Sandpoint and Hope, where physicians concerned about their patients’ breathing problems several years ago formed Safe Air For Everyone to push for an end to the practice.
Patti Gora, executive director of SAFE, was surprised by the settlement news Thursday. “Wow, that’s great news,” she said. “I think it’s a very positive step forward for public health in North Idaho. … We certainly hope that Idaho will join the rest of the grass-growing world in recognizing that you can grow grass, be profitable and not hurt the communities around you.”
Washington phased out bluegrass burning after similar concerns surfaced there.
Wayne Meyer, a bluegrass farmer and former state legislator, said, “I’m one of those individuals that didn’t care for the idea that we settled, because, you know, we were winning. There were a group of us that if the insurance companies would’ve given us the money instead of the plaintiffs, we would’ve continued the lawsuit.”
He added, “I felt that I hadn’t done anything wrong. I was legal under the law. And yet I’m paying for damages. So that bothers me.”
There’s still more litigation pending. The same class-action plaintiffs also sued the state of Idaho for negligence and “taking” of private property. They charged that by authorizing farmers to send smoke into their homes and property, the state was violating their property rights. That case was put on hold while the constitutionality of HB 391 was addressed.
On Thursday, Walton asked Judge Woodland to drop the takings claims without prejudice, so the residents can sue the state in federal court on the takings issue.
Three recent U.S. Supreme Court decisions on takings show the case belongs in federal court, he argued.
Deputy Idaho Attorney General Clay Smith argued that a state court decision should preclude a federal case on the same claims. “They want the ability to collaterally attack the Idaho Supreme Court’s opinion,” Smith told the court.
Walton said the residents want another shot at proving HB 391 unconstitutional.
“With all due respect to the Idaho Supreme Court, we believe they’re just wrong,” he said after the court hearing.
He said his clients’ health and lives are threatened by field smoke.
“Ultimately, the practice needs to stop in North Idaho,” he said. “The farmers aren’t hurt except economically, if they had to conduct an alternate practice to field burning.”
Last week, Idaho State Agriculture Director Pat Takasugi ruled that Idaho farmers have no economically viable alternative to field burning, a decision that clears the way for burning this summer. Farmers are expected to begin torching their fields within the next month.
Erbland said development pressure is eating away at the field burning issue.
“As a practical matter, the land values on the Rathdrum Prairie are causing some of the farmers to voluntarily give up that right anyway in favor of selling property. … I think there’ll be a dramatic reduction in noticeable emissions because of that.”
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